[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-13871

________________________

D.C. Docket Nos. 1:10-cv-22190-JLK; 1:09-md-02036-JLK

MICHAEL DASHER, 

 Plaintiff - Appellee,

versus

RBC BANK (USA), 

d.b.a. RBC Bank, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(February 13, 2018)

Before TJOFLAT, JULIE CARNES, and MELLOY,

∗ Circuit Judges.

MELLOY, Circuit Judge: 

 ∗ Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by 

designation.

Case: 15-13871 Date Filed: 02/13/2018 Page: 1 of 19 
Defendant RBC Bank (USA) (“RBC”) appeals the district court’s denial of a 

motion to compel arbitration. We affirm, albeit for reasons different than those 

cited by the district court.

I.

Michael Dasher held a checking account with RBC and used a debit card for 

that account. Dasher asserts RBC failed to properly warn him of possible 

overdrafts at points of sale when he used his debit card. He also asserts RBC 

impermissibly rearranged the order of debit-card transactions so as to process 

larger transactions before smaller transactions. Through this practice, RBC more 

quickly drove account balances to zero, thus maximizing the number of separate 

overdrafts. RBC charged a fee for each overdraft regardless of the size of the 

overdraft. By rearranging transactions in a manner that maximized the number of 

separate overdrafts, RBC maximized total fees charged to Dasher.

1

 1 As an example, assume a customer account contains a balance of $100. Also assume the 

customer used a debit card to buy coffee for $10 at 7:00 am, parking for $20 at 9:00 am, lunch 

for $15 at noon, gas for $25 at 4:00 pm, and groceries for $125 at 7:00 pm. If the transactions 

were posted in chronological order, the account would still have a $30 balance after the 4:00 pm 

gas purchase. The $125 grocery charge would create an overdraft resulting in a single overdraft 

fee. By rearranging the transactions so the largest transaction on any given day is first, the $125 

grocery charge is posted first. This creates an overdraft for that charge and each of the other 

charges that actually occurred earlier in the day. The customer is then charged an overdraft fee 

for each of the five transactions.

2

Case: 15-13871 Date Filed: 02/13/2018 Page: 2 of 19 
3

Dasher and other account holders sued RBC, and the present case became 

part of the Checking Account Overdraft Litigation, MDL No. 2036. RBC moved 

to compel arbitration, seeking to invoke an arbitration provision in a 2008 

customer account agreement. The district court denied the motion. See In re 

Checking Account Overdraft Litig., No. 09-MD-02036-JLK, 2010 WL 3361127 

(S.D. Fla. Aug 23, 2010). RBC appealed. While the appeal was pending, the 

Supreme Court decided AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). 

Perceiving the possible applicability of Concepcion, the parties moved to vacate 

and remand for reconsideration. The Eleventh Circuit granted the motion. See In 

re Checking Account Overdraft Litig., 425 F. App’x 826 (11th Cir. 2011) (per 

curiam).

Back at the district court, the parties conducted limited discovery related to 

the issue of arbitration. Discovery revealed PNC Bank, N.A. (“PNC”) had 

acquired RBC and had issued a new version of its customer-account agreements in 

2012.

2

 In doing so, PNC relied upon provisions in the 2008 agreement authorizing 

RBC’s successors to step into RBC’s shoes and also authorizing RBC to make 

 2 Dasher’s amended complaint identifies the defendant as “RBC Bank (USA), predecessor in 

interest to PNC Bank, N.A.” Dasher alleges that due to “the merger, PNC Bank is liable for the 

acts of RBC.” The defendant represents that RBC was merged into PNC and ceased to exist as 

an entity. For purposes of this opinion, we refer to the defendant from this point forward as 

PNC, referring to RBC only where necessary to describe past events.

Case: 15-13871 Date Filed: 02/13/2018 Page: 3 of 19 
4

changes to the terms of the agreement. PNC’s 2012 agreement lacked an 

arbitration provision. The 2012 agreement purported to become binding and 

effective upon account holders who continued to use their accounts without opting

out. Dasher did not opt out of the 2012 agreement.

PNC renewed the RBC motion to compel arbitration, arguing the 2008 

agreement and its arbitration provision should apply. Dasher resisted, arguing 

PNC’s more recent 2012 agreement wholly superseded the 2008 agreement, thus 

leaving the parties without a contractual duty to arbitrate. On January 11, 2013, 

the district court issued a written order agreeing with Dasher and denying the 

motion to compel. In re Checking Account Overdraft Litig., 915 F. Supp. 2d 1334 

(S.D. Fla. 2013). PNC filed a notice of appeal that same day. 

Shortly after the district court entered its order, PNC sent account holders an 

amended agreement inserting an arbitration provision into the otherwise operative 

2012 agreement. The amendment purported to become effective February 1, 2013. 

The arbitration provision of the February 2013 amendment is not a model of 

clarity, but it contains language suggesting it might have retroactive effect upon 

existing claims. The February 2013 amendment indicates PNC deems account 

holders to accept the amendment if the account holders fail to opt out and continue

to use their accounts. Dasher neither opted out nor ceased using his account. 

Case: 15-13871 Date Filed: 02/13/2018 Page: 4 of 19 
5

The parties then briefed and argued their appeal from the district court’s 

January 2013 order. We affirmed the judgment of the district court on February 

10, 2014, concluding the 2012 agreement wholly superseded the 2008 agreement, 

thus leaving the parties without a current duty to arbitrate. See Dasher v. RBC 

Bank (USA), 745 F.3d 1111, 1127 (11th Cir. 2014). PNC filed a motion for 

reconsideration on February 28, 2014. In that motion, PNC argued “the logic of 

the Panel Opinion” showed that “if PNC amended its account agreement to include 

an arbitration provision (which it did beginning in February 2013), Plaintiffs must 

arbitrate their claims, because the most-current version of the agreement 

‘supersedes’ any prior agreement.” We denied the motion for reconsideration on 

March 27, 2014. 

On April 1, 2014, PNC filed a motion to stay the mandate pending pursuit of 

a writ of certiorari in the Supreme Court. We granted the stay, PNC 

unsuccessfully sought review in the Supreme Court, and our Court issued the 

mandate on October 20, 2014. On November 10, 2014, pursuant to an October 29, 

2014 scheduling order, Dasher filed an amended consolidated complaint in the 

district court. 

Then, on December 5, 2014, PNC moved to compel arbitration based upon 

the February 2013 amendment to the 2012 agreement. Prior to this motion, and 

Case: 15-13871 Date Filed: 02/13/2018 Page: 5 of 19 
6

throughout the lengthy appeal from the January 2013 order, PNC had not sought to 

enforce the arbitration provision from the February 2013 amendment. Further, 

PNC did not suggest it had directed the February 2013 amendment to Dasher’s 

counsel in February 2013 during the window of time PNC designated for its 

account holders to accept or opt out of the proposed amendment. Similarly, PNC 

did not suggest it directed the proposed amendment to the attention of the court at 

that time. In fact, PNC does not suggest it attempted to supplement any record or

notify the court or opposing counsel other than through the above-quoted and 

oblique parenthetical reference contained in the February 2014 motion for 

reconsideration. 

Dasher resisted the new motion to compel arbitration, arguing PNC had 

waived the right to rely upon the arbitration provision in the February 2013 

amendment by failing to raise it at an earlier time. Dasher characterized the timing 

of the 2013 amendment and PNC’s earlier failure to alert counsel and the court of

the amendment as strategic ploys. PNC, on the other hand, argued the amendment 

was unrelated to Dasher’s litigation and was merely a change to a standard form 

agreement sent to account holders as a matter of routine business. PNC argued 

further that waiver should not apply because the district court record had closed 

prior to the February 2013 amendment such that the amendment could not have 

Case: 15-13871 Date Filed: 02/13/2018 Page: 6 of 19 
7

become part of the appellate record.

3

 According to PNC, there was no opportunity 

to raise the February 2013 amendment with the court prior to completion of the last 

appeal. The parties also presented arguments as to whether applicable state law 

permitted the insertion of an arbitration provision into an agreement in the absence 

of express acceptance by both parties.

The district court denied the motion in August 2015, finding PNC waived 

the right to pursue arbitration under the 2013 amendment because PNC (1) did not 

create the amendment until almost three years after litigation commenced; (2) 

failed to assert the amendment for almost two years after it purportedly went into 

effect; and (3) vigorously pursued arbitration under a different provision 

throughout this time without seeking to rely on the 2013 amendment and without 

timely notifying counsel or the court of the amendment. In the alternative, citing 

cases arising under the Uniform Commercial Code, the district court held the 

addition of an arbitration provision to an existing agreement was a material 

alteration that could not become effective unless both parties expressly agreed to 

the addition. PNC Appeals.

 3 In fact, PNC sent the amendment prior to the deadline for a notice of appeal from the district 

court’s January 2013 order and listed an effective date that also preceded that deadline.

Case: 15-13871 Date Filed: 02/13/2018 Page: 7 of 19 
8

II

We review de novo the district court’s denial of PNC’s motion to compel 

arbitration. Dasher, 745 F.3d at 1115. In conducting our review, we find it 

unnecessary to address the questions of waiver or the district court’s alternative 

holding. Instead, we conclude PNC’s motion fails for a more fundamental reason: 

PNC failed to demonstrate the requisite meeting of the minds to support a finding 

that the parties agreed through the February 2013 amendment to arbitrate their

then-pending litigation. 

We reach this conclusion for two related reasons. First, PNC distributed the 

proposed, purportedly retroactive and litigation-ending amendment directly to 

Dasher, even though PNC knew Dasher was an adverse litigant actively 

represented by counsel as to the very issues raised in the amendment. Second, at 

the time Dasher failed to opt out of the proposed amendment, he was forcefully 

and consistently resisting arbitration of the pending litigation. At most, then, PNC 

demonstrated inconsistent communications from Dasher (his implicit acceptance 

by failing to opt out and his express resistance to arbitration) coupled with a failure 

on PNC’s part to communicate through counsel. In this narrow context, we cannot 

overlook PNC’s failure to direct its purportedly court-evicting proposed

amendment through known litigation counsel. See, e.g., Russell v. Citigroup, Inc., 

748 F.3d 677, 680–81 (6th Cir. 2014) (holding an arbitration provision in a new 

Case: 15-13871 Date Filed: 02/13/2018 Page: 8 of 19 
9

employment agreement entered into mid-litigation did not evict a pending lawsuit 

from court in part because the employer-defendant failed to direct the agreement to 

plaintiff’s litigation counsel); see also In re Cox Enters., Inc. Set-top Cable Telev. 

Box Antitrust Litig., 835 F.3d 1195, 1203 (10th Cir. 2016) (recognizing the 

“common sense” rule of Russell but distinguishing Russell on its facts).

In Russell, a call-center employee had signed an employment agreement 

with Citicorp requiring arbitration of individual claims but not class actions. 748 

F.3d at 679. After leaving employment, the employee instituted a class action 

against Citicorp. Id. While that class action was pending, he applied to work at 

the same call center and signed a new employment agreement. Id. This time, the 

employment agreement contained an arbitration provision covering class actions. 

Id. He received the new agreement at the call center and signed and submitted the 

new agreement at the call center. Id.

Citicorp subsequently sought retroactive application of the broad arbitration 

provision in the new employment agreement to evict the pending class action from 

court. Id. The Sixth Circuit examined the new agreement and found little textual 

support for retroactive application. Russell, 748 F.3d at 679–80. The court also 

relied on the fact that Citicorp did not communicate the new contract to Russell 

through his attorney. Id. at 680 (“One party’s lawyer may not communicate about 

Case: 15-13871 Date Filed: 02/13/2018 Page: 9 of 19 
10

a pending case with an opposing litigant he knows has legal representation.”

(citing Ky. Sup. Ct. R. 3.130 and Model Rules of Prof’l Conduct r. 4.2 (1983))). 

The court emphasized that this rule extended to attorneys assisting their clients’ 

direct communications with represented parties. Id. (“The canons preclude a 

lawyer not only from communicating with a represented adversary but also (for the 

most part) from helping his client [to] do so.” (citing Restatement (Third) of the 

Law Governing Lawyers § 99 cmt. k (2000))). The court ultimately concluded the 

parties could not have intended the agreement to be retroactive in a manner that 

would evict the pending action from court. Id. at 681 (“All in all, ‘arbitration is a 

matter of consent, not coercion.’” (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l 

Corp., 559 U.S. 662, 681 (2010))).

We find Russell persuasive to the extent it considered the failure to 

communicate through litigation counsel material to the existence of a retroactive 

and court-evicting agreement to arbitrate. Arbitration, after all, “is simply a matter 

of contract” such that parties cannot be required to arbitrate a matter unless they 

have agreed to arbitration. Dasher, 745 F.3d at 1116 (quoting First Options of 

Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). Further, in addressing the 

underlying question of whether parties have a valid arbitration agreement, no 

presumption in favor of arbitration applies. See id. (“[W]hile doubts concerning 

the scope of an arbitration clause should be resolved in favor of arbitration, the 

Case: 15-13871 Date Filed: 02/13/2018 Page: 10 of 19 
11

presumption does not apply to disputes concerning whether an agreement to 

arbitrate has been made.” (quoting Applied Energetics, Inc. v. NewOak Capital 

Mkts., LLC, 645 F.3d 522, 526 (2d Cir. 2011))). Rather, the well-recognized 

national policy favoring arbitration comes into play later, when addressing whether 

a particular claim is covered by an otherwise valid and enforceable arbitration 

agreement. See id. at 1115–16 (“Granite Rock [Co. v. Int’l Bhd. of Teamsters, 561 

U.S. 287, 301 (2010)] thus precludes application of the FAA’s presumption of 

arbitrability before it is determined whether there is a ‘validly formed and 

enforceable arbitration agreement.’”).

State contract law determines the existence and contours of parties’ 

agreements, and in this case, North Carolina law controls. See Dasher, 745 F.3d at 

1116 (“[I]n determining whether a binding agreement arose between the parties, 

courts apply the contract law of the particular state that governs the formation of 

contracts.” (alteration in original) (quoting Caley v. Gulfstream Aerospace Corp., 

428 F.3d 1359, 1368 (11th Cir. 2005))). Looking to North Carolina, we find 

nothing unorthodox in that state’s analysis of contract law. In the absence of a 

wholly integrated and signed document spelling out the parties’ agreement, we

determine the parties’ intent by examining what the parties communicated to one 

another through words and actions. See id. (“Thus, to resolve this case we apply 

North Carolina contract law and look for objective evidence that the parties agreed 

Case: 15-13871 Date Filed: 02/13/2018 Page: 11 of 19 
12

to arbitrate.”); Chappell v. Roth, 548 S.E.2d 499, 500 (N.C. 2001) (“For an 

agreement to constitute a valid contract, the parties’ minds must meet as to all the 

terms.” (citation omitted)); Creech v. Melnik, 495 S.E.2d 907, 911–12 (N.C. 1998) 

(stating that it is necessary to look at “the actions of the parties” when assessing an 

implied offer or acceptance and noting that, “[e]xcept for the method of proving 

the fact of mutual assent,” express and implied contracts are proven through 

similar means).

Here, PNC unilaterally proposed the February 2013 amendment to add an

arbitration provision and invited its account holders to opt out if they did not wish 

to be bound by the amendment. PNC communicated its proposed amendment and 

preferred communication mechanisms to account holders in writing. Dasher’s 

uncounseled response purportedly was silence. His counseled actions, however, 

clearly and simultaneously evinced an ongoing resistance to arbitration.

Even assuming for the sake of argument that Dasher received and considered 

the proposed amendment when PNC asserts he did, Dasher’s subsequent

“communications” to PNC were not merely equivocal, they were irreconcilably in 

conflict with one another. PNC therefore cannot show that Dasher accepted the 

addition of the arbitration provision, in general, or that he agreed specifically that 

the arbitration provision could apply retroactively to evict his pending action from 

Case: 15-13871 Date Filed: 02/13/2018 Page: 12 of 19 
13

court. See Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1330 (11th 

Cir. 2016) (“The party asserting the existence of a contract has the burden of 

proving its existence and its terms.” (citation omitted)); Gen. Tire & Rubber Co. v. 

Distribs., Inc., 117 S.E.2d 479, 486 (N.C. 1960) (“The burden of proof constitutes 

a substantial right. The burden of proof on an issue ordinarily rests on the party 

who asserts the affirmative thereof[.]” (citation omitted)).

Importantly, PNC knew in no uncertain terms that Dasher was contesting 

arbitration and that he was represented by counsel specifically employed for the 

purpose of handling the matter of the overdraft litigation. Any communication 

must be understood in context, not viewed in the abstract. In this context, the risks 

of communicating directly with the opposing party as to a purportedly courtevicting amendment outside the presence of opposing counsel are manifest. See, 

e.g., Model Rules of Prof’l Conduct r. 4.2 (Am Bar Ass’n 2014) (“In representing a 

client, a lawyer shall not communicate about the subject of the representation with 

a person the lawyer knows to be represented by another lawyer in the matter 

. . . .”); Rules Regulating Fla. Bar r. 4-4.2; N.C. Rules of Prof’l Conduct r. 4.2. As 

in the Sixth Circuit’s Russell case, if a party’s “in-house counsel prepared a 

contract, expecting it to be given to a represented litigant but also expecting it to 

govern existing cases, they might find themselves near the edge of this rule.” 748 

F.3d at 680.

Case: 15-13871 Date Filed: 02/13/2018 Page: 13 of 19 
14

We do not mean to suggest PNC’s litigation counsel communicated directly 

with Dasher. Nor do we find it necessary to adopt Dasher’s characterization of 

PNC’s actions as purposeful avoidance of disclosure or nefarious sandbagging.4

 

Quite simply, we do not intend to write an ethics opinion. We merely find the 

failure to communicate through counsel material to the important question of 

whether Dasher agreed to accept the February 2013 amendment. Given the wholly 

equivocal “communications” from Dasher after PNC sent the February 2013 

amendments, given the fact that the amendments (if accepted and interpreted as 

argued by PNC) would conclusively establish the need to arbitrate the existing 

litigation, and given the wholesale failure of PNC to communicate the proposed 

amendments to known litigation counsel for Dasher, we conclude PNC failed to 

show Dasher agreed to the addition of the arbitration provision in the February 

2013 amendment.

 4 Dasher attributes PNC’s failure to communicate through counsel to ongoing litigation strategy. 

Dasher infers from the timing that PNC created the proposed February 2013 amendments in 

response to the January 2013 district court order denying PNC’s motion to compel arbitration. 

Dasher also characterizes PNC’s December 2014 request to invoke the February 2013 

amendments as litigation-protracting sandbagging. 

PNC takes great umbrage at these characterizations and describes the timing of the February 

2013 proposed amendment as unrelated to the January 2013 order. PNC characterizes the 

February 2013 proposed amendment as the mere updating of a form agreement unrelated to 

Dasher’s case. According to PNC, this characterization explains the failure to direct the 

proposed amendment to litigation counsel. 

Case: 15-13871 Date Filed: 02/13/2018 Page: 14 of 19 
15

PNC, nevertheless, argues it is unfair and asymmetric for our court to have 

held PNC is bound by the superseding 2012 agreement it created and 

communicated to Dasher by identical means but now to hold Dasher is not bound 

by the 2013 amendment. We find little merit in this “what’s good for the goose is 

good for the gander” argument. PNC unilaterally drafted and sought to impose 

upon account holders the 2012 agreement and the February 2013 amendment. 

PNC, presumably assisted by counsel, drafted both and communicated both to its 

account holders. PNC did not communicate equivocally or unclearly its desires 

and intentions. Therefore, when Dasher asked the courts to enforce the 2012 

agreement, Dasher asked merely for enforcement of PNC’s own agreement as 

drafted and proposed by PNC. 

Dasher did not suggest that he rejected or intended to reject PNC’s 2012 

agreement. Rather, acceptance of the terms of the 2012 agreement by Dasher was 

an act wholly consistent with his actions in the pending litigation. And, because 

Dasher was not the drafter of the 2012 agreement, he did not at any time 

communicate a proposed litigation-altering agreement to PNC outside of channels 

that included PNC’s litigation counsel. Further, PNC’s omission of an arbitration 

provision from the 2012 agreement was PNC’s own act and solely PNC’s 

responsibility. Enforcement of the 2012 agreement, therefore, involved neither 

Case: 15-13871 Date Filed: 02/13/2018 Page: 15 of 19 
16

factual uncertainty nor dancing along ethical boundaries. The factual uncertainty 

and related ethical restrictions surrounding communication of the February 2013 

amendment simply did not exist as to the 2012 agreement.

Finally, as a separate issue, PNC argues that Dasher’s filing of his

consolidated amended complaint in November 2014 “revived” PNC’s arbitration 

rights. PNC seemingly makes this argument to counter Dasher’s waiver 

argument—the argument adopted by the district court which we do not reach on 

appeal. 

As a general matter, PNC correctly notes that, in some situations involving 

waivers of arbitration rights, we have held a party’s subsequent filing of an 

amended complaint may serve to revive the defendant’s arbitration rights if the 

amended complaint materially alters the theory or scope of the case. See, e.g.,

Collado v. J. & G. Transp., Inc., 820 F.3d 1256, 1259 (11th Cir. 2016) (per 

curiam) (“In limited circumstances, however, where a party has waived the right to 

compel arbitration, an amended complaint can revive that right if it is shown that 

the amended complaint unexpectedly changes the scope or theory of the plaintiff’s 

claims.” (citation omitted)); Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1202 

(11th Cir. 2011) (“[T]he defendant will be allowed to plead anew in response to an 

amended complaint, as if it were the initial complaint, when the amended 

Case: 15-13871 Date Filed: 02/13/2018 Page: 16 of 19 
17

complaint . . . changes the theory or scope of the case.” (alteration in original) 

(citation omitted)). Given our resolution of this appeal on grounds other than 

waiver, however, PNC’s argument is a poor fit. Because we conclude Dasher did 

not agree to the purportedly court-evicting February 2013 amendment, there was 

no arbitration right for PNC to waive and no arbitration right for the November 

2014 consolidated amended complaint to revive. 

Even if PNC’s revival theory could apply in this substantially different 

context, the changes in the November 2014 consolidated amended complaint 

simply would not be sufficient to revive a waived right. Rather, Dasher’s 

November 2014 consolidated amended complaint shrank rather than expanded the 

scope of the action. Dasher’s original complaint and his consolidated amended 

complaint asserted his theories for relief through the same five causes of action. 

The class definitions, however, changed. The class definitions in the original 

complaint were broad:

All RBC customers in the United States who, within the applicable 

statute of limitations preceding the filing of this action to the date of 

class certification, incurred an overdraft fee as a result of RBC’s 

practice of re-sequencing debit card transactions from highest to 

lowest (the “National Class”).

and

All RBC customers having accounts at branches in the state of North 

Carolina for the purpose of asserting claims under North Carolina’s 

Case: 15-13871 Date Filed: 02/13/2018 Page: 17 of 19 
18

consumer protection statute (the “North Carolina State Subclass”) (see

Fifth Claim for Relief, infra).

The class definitions in the consolidated amended complaint were more limited:

All RBC customers in the United States who, within the applicable 

statute of limitations preceding the filing of this action, incurred an 

overdraft fee as a result of RBC’s practice of re-sequencing debit card 

transactions from highest to lowest and whose account was closed 

prior to February 1, 2013 (the “Avery National Class”).

All RBC customers in the United States who, within the applicable 

statute of limitations preceding the filing of this action, incurred an 

overdraft fee as a result of RBC’s practice of re-sequencing debit card 

transactions from highest to lowest and whose account remained open 

on or after February 1, 2013 (the “Dasher National Class”).

and

All RBC customers having accounts at branches in the state of North 

Carolina for the purpose of asserting claims under North Carolina’s 

consumer protection statute and whose account was closed prior to 

February 1, 2013 (the “Avery State Subclass”) (see Fifth Claim for 

Relief, infra).

All RBC customers having accounts at branches in the state of North 

Carolina for the purpose of asserting claims under North Carolina’s 

consumer protection statute whose account remained open on or after 

February 1, 2013 (the “Dasher State Subclass”) (see Fifth Claim for 

Relief, infra).

PNC also argues the scope of the action changed because Dasher attached a 

2009 account agreement to his consolidated amended complaint but a 2010 

Case: 15-13871 Date Filed: 02/13/2018 Page: 18 of 19 
19

account agreement to his original complaint. Dasher, however, referred in his 

original complaint to the 2010 account agreement merely as a representative copy. 

More importantly, given the applicable statute of limitations, multiple years’ 

agreements were material to the claims in both complaints. The fact that different 

years’ agreements were attached did not expand or shrink the scope of the action. 

PNC’s revival argument, therefore, would fail even if it could otherwise find 

application in this case, where we do not adopt the theory of waiver.

We affirm the district court’s denial of the motion to compel arbitration.

Case: 15-13871 Date Filed: 02/13/2018 Page: 19 of 19